Law & the Courts

How to Judge the Stephon Clark Shooting

Salena Manni (left), fiancee of Stephon Clark, holds their son Cairo and an unidentified man holds son Aiden (2nd right) while Basim Elkarra speaks and Rev Shane Harris listens at a rally in Sacramento, California, March 31, 2018. (Bob Strong/Reuters)
A response to David French.

The headline to David French’s April 4 column is a question: “Shouldn’t Police at Home Exhibit at Least as Much Discipline as Soldiers at War?” It’s provocative, and yet there’s an obvious answer, which is, “Of course they should.” But in answering this simple question, one must acknowledge that it raises other, more complex ones.

David’s piece is a response to my March 30 post in the Corner, which itself was an answer to his critique of the officers who shot and killed Stephon Clark in Sacramento on March 18. David and I see the Clark shooting differently, approaching it as we do with opinions shaped by our own experiences. As Dennis Prager often says, it’s better to have clarity than agreement, so I take this opportunity to answer David once again in the hope that readers might better understand where and why we differ.

David begins his April 4 column with a recitation of his experience as an Army JAG officer in Iraq, where he spent a year advising combat commanders on the rules of engagement. “In the course of that year,” he writes, “I helped make countless life-or-death decisions — decisions that not only placed the lives of my friends and brothers at risk but also determined whether we killed terrorists or killed civilians.” To his great credit, David voluntarily spent time accompanying combat patrols, where he “experienced tense situations where you didn’t know whether to shoot or hold fire.”

I have only the highest respect for David’s service in the Army, as I do for his gifts as a writer, but his experiences in Iraq do not necessarily inform us on how a police officer should respond to a fleeing suspect. (Someone who understands this is Robert C. J. Parry, who served as an Army infantry officer in Iraq and Afghanistan and who studies police use-of-force issues. Parry wrote a well-researched and thoughtful response to David’s column, which can be found here, on the Ricochet website.)

In his April 4 column, David describes a situation in which soldiers in Iraq had to decide quickly whether to engage possible enemy fighters spotted near the scene of an IED attack. A medevac helicopter was inbound, and the prone figures in a nearby ditch may have posed a threat, even though no weapons had been seen. As it turned out, David tells us, the unidentified figures were unarmed boys, who surely had no idea the American soldiers were considering annihilating them.

But in that scenario, and surely in others in which David’s opinions were sought, there was time, however brief, for contemplation and consultation on how to proceed. There are situations in law enforcement that afford similar time, but the one faced by the officers in Sacramento was not one of them. When they confronted Stephon Clark and he ran away, the officers had to make the instantaneous decision to pursue him or not, with each choice carrying its own attendant risk. Chase him and you risk a violent encounter; let him run and he may commit further crimes.

But there was another risk. Clark, as reported by the deputy in the sheriff’s helicopter circling overhead, had broken the window to a home. Was this merely a further act of vandalism, as David suggests, or was it an attempt to enter the home, perhaps to commit a burglary or endanger the occupants? These were not remote possibilities but very real considerations to be made in an instant. There was no time to contemplate the what-ifs and weigh the risks; pursuing Clark was the proper course of action, and the officers would have been derelict in their duties if they hadn’t. Having made the choice to pursue, was it then reasonable for the officers to believe that Clark presented a deadly threat when they rounded the corner and saw him holding what they mistakenly but reasonably believed to be a gun? I argue it was.

And here is the point on which David and I have our biggest disagreement. In his original piece, David argues that police officers consider the “background level of risk” when deciding how to respond to a potential threat, and that they should include in this calculus the frequency and number of police officers killed in their city. In his April 4 response to me, he re-emphasizes the point, and expresses surprise that I object. “Of course,” he writes (emphasis in the original), “the infrequency of police killings (as one factor among many) is relevant to ‘any individual encounter,’ especially when the encounter is with a suspected trespasser and vandal not known to be a violent felon.”

To which I answer, “Of course not.”

It is foolish, and sometimes fatal, to assume that someone wanted for a minor crime has never committed a major one or would not do so in the future.

The level of violence in a given area is one factor considered in evaluating an officer’s decision to stop someone and perform a pat-down search for weapons, but it plays no role in the discussion of an officer’s use of force. In the case of a police shooting, the historical threat level of any city or neighborhood is irrelevant, as is the relative paucity of police officers murdered. What matters is the threat posed by each suspect in each encounter, which, as every cop knows (and David acknowledges), can go from low to high very quickly.

David also places too much weight on the nature of the precipitating event, arguing that police officers should be less wary in chasing someone wanted for a minor crime. He calls Clark a “trespasser and vandal,” but the facts suggest “burglar” might be a more fitting characterization, especially after he broke the window of a home. What’s more, as every cop also knows, today’s misdemeanor suspect is very often yesterday’s felon — and tomorrow’s. And indeed we now know that at the time he died, Clark was on probation for robbery.

Even so, an evaluation of any police use of force incorporates the facts known to the officer at the time of the incident, so the mention of Clark’s violent past isn’t intended to serve as a post hoc justification for the shooting. It is rather to illustrate the point that it is foolish, and sometimes fatal, to assume that someone wanted for a minor crime has never committed a major one or would not do so in the future.

What’s more, there may be a variety of reasons for a low number of police killings in a given city. It may simply be a tranquil community (as Sacramento is not), or it may be that the police have defended themselves when attacked. See this video, for example, which shows a 2017 police shooting in, yes, Sacramento. A ballistic vest stopped a bullet and saved an officer’s life. If, as David suggests, officers should consider the number of colleagues murdered in their city before taking defensive action, would he have them disregard this recent deadly attack merely because it was unsuccessful?

I don’t expect any of this to change David’s mind, but again, better to have clarity than agreement. I merely ask the readers to consider each of our arguments and draw their own conclusions.

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